State of Tennessee v. Bobby Dwaine England ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 23, 2010
STATE OF TENNESSEE v. BOBBY DWAINE ENGLAND
Appeal from the Criminal Court for Cumberland County
No. 08-0145 _____David Patterson, Judge
No. E2009-01589-CCA-R3-CD - Filed June 18, 2010
J OSEPH M. T IPTON, P.J., concurring.
I concur in the results reached in the majority opinion. However, I would affirm the
trial court because of the Defendant’s failure to include the guilty plea hearing transcript in
the record and the attendant presumption that the trial court’s determinations were correct.
See State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling
presumed correct in the absence of an adequate record on appeal). The 1989 Sentencing Act,
as amended, requires a sentencing court to consider evidence received at the trial. T.C.A. §
40-35-2010 (b)(1). With a guilty plea involving a felony, the evidence supporting the plea
and finding of guilt is usually submitted by stipulation. This court has considered the guilty
plea hearing transcript to be vital to a de novo review and potential resentencing by this court
as required by law. See T.C.A. §40-35-401. No matter how developed a record may appear,
we will never know the full extent unless the guilty plea transcript is included. I do not
believe this court is required to analyze an incomplete record to determine the merit of a
sentencing complaint.
JOSEPH M. TIPTON, PRESIDING JUDGE